EDINBURGH The seventh of April 1677. IT is ordered by the Lords of His Majesties most Honourable Privy Council that none shall Re-print or Import into this Kingdom this Book Entituled The Laws and Customs of Scotland in Matters Criminal By Sir George Mackenzie of Rose-haugh for the space of Nineteen years after the Date hereof under the pain of Confiscation of the same to Thomas Brown George Swintoun and Iames Glen Printers hereof and further punishment as the Council shall think fit to inflict upon them Extracted be me Thomas Hay THE LAWS AND CUSTOMES OF SCOTLAND In Matters CRIMINAL Wherein is to be seen how the Civil Law and the Laws and Customs of other Nations do agree with and supply ours By Sir GEORGE MACKENZIE of Rose-haugh EDINBVRGH Printed by Iames Glen Anno Domini MDCLXXVIII TO HIS GRACE JOHN Duke of LAUDERDALE Marquess of March Earl of Lauderdail and Guildford Viscount Maitland Lord Thirlestane Musselburgh Boltoun and Petersham President of His MAJESTIE' 's most Honourable Privy Council of SCOTLAND Sole Secretary of State for the said Kingdom Gentleman of His MAJESTIE' 's Bed-Chamber and Knight of the most Noble Order of the Garter May it please Your Grace THough the number and wit of such as use to write Dedications may seem to have exhausted all that can be said upon such occasions yet I have a new way of address left me which is to write nothing of you but what is true by the confession of your enemies who admire more the greatness of your Parts than of either your Interest or Success And how you have made so great a turn in this Kingdom without either Blood or Forfeiture shewing neither revenge as to what is past nor fear as to what is to come continuing no longer your unkindness to any man than you think he continues his opposition to his Prince All have at sometime confest that you have been the Ornament as well as Defence of your Native Countrey to whom every Scottish-man is almost as dear as every man is to his own Relations And I am sure that your enemies will find it easier to put you from your Office then to fill it and none of them can wish you to be removed without being himself a loser by it Nor can I be so unjust even to such as oppos'd you as not to acknowledge that I have heard them talk of you so advantagiously when design and interest oblidged them to dissemble as almost convinced me that the most of them opposed you only in publick rather from the glory of having so great an Adversary than from the justice of the undertaking And your Countrey has in their late Confluences where they crouded in mighty numbers and with a remarkable joy to meet you when a privat man shew'd greater respect to your naked merit then to the highest Characters by which others were marked out for publict honour Having writ this Book to inform my Countrey-men and to illuminat our Law I could not present it more justly to any than to your Grace who has derived your Blood from a Noble Family which has been still eminent in our Courts of Justice since we had any and who are your self the greatest States-man in Europe who is a Schollar and the greatest Schollar who is a States-man For to hear you talk of Books one would think you had bestowed no time in studying men and yet to observe your wise conduct in affairs one might be induced to believe that you had no time to study Books You are the chief man who does nobly raise the study of the Civil Law to a happy usefulness in the greater and general Affairs of Europe and who spends the one half of the day in studying what is just and the other half in practising what is so All which may be easily believed from me who am as great an instance of your generosity as an admirer of it Especially since you have left me nothing to wish so that what I say needs not flow from flattery and so must be presumed to flow from conviction and gratitude in Your Graces most faithful and most humble Servant George Mackenzie THE DESIGN THe great concerns of men are their Lives Fortunes and Reputation and these three suffering at once in Crimes it is the great interest of mankind to know how to evite such accusations and how to defend themselves when accused And yet none of our Lawyers have been so kind to their Countrey as to write one Sheet upon this pleasant and advantagious Subject which made it a task both necessary and difficult to me In prosecuting this design I was forced to revise and abreviat those many and great Volums which make up our Criminal Registers and having added to them these Observations I have my self made during my twenty years attendance upon that Court either as Iudge or Advocat I collationed all with our Statutory Law the Civil Law and the Customs of other Countreys and the opinions of the Doctors And as I may without vanity say that few valuable Authors treat of Crimes whom I have not read So there is nothing here which is not warranted by Law or Decisions or in which when I doubted I did not confer seriously with the learned'st Lawyers of this Age and yet I doubt not but in some things others may differ from me as the best Writers do amongst themselves And having only designed to establish solidly the Principles of the Criminal Law I wanted room for treating learnedly each particular case or even for hinting at all such cases as may be necessary And without wearying my Readers with Citations which was very easie I have furnished the Book with as much reason as is ordinarly to be found in Legal Treatises The reason why I have so oft cited the Basilicks Theophil and the Greek Scholiasts was not only because none before me have used them in Criminal Treatises but because I conclude them the best Interpreters of Justinians Text For these Books having been Writ in the same Age and place and some of them by those who compiled the Latine Text they must understand it best of all others of which I have given many instances in this Book and shall here adde one there forgot which is that the Latine Interpreters doubt much what is meant by remittendum in the constitution Si quis Imperatori male dixerit some interpreting it pardoned some to be sent back to the Emperour But the Basilicks render it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies only ignoscendum I cannot but admire much the wisdom of God who gives not only inclination but pleasure to such as toyl for the good of others for I am sure few men would have from any weaker impulse bestowed so much time and so many thoughts upon an imployment which without bringing gain will certainly bring envy and censure For I find it is the genius of this Age to admire such as make the publick good bend to their designs and to
then the receivers of the wodset commit Usury notwithstanding of the hazard And this brings to my memory a case debated upon the 22. of Ianuary 1672. wherein a Gentleman being pursued as an Usurer in so far as he had taken his Debitor obliedged to pay him a Boll for the annualrent of every hundred Merk which according to the feir of the year did for the two years of his wodset extended to five Pound the Boll and so exceeded the annualrent by twenty Shilling every Boll yet this was found no Usury because he in that case took his hazard of the feir of the year which might have been much lower and because that the price of Victual varies much according to the several Shires and Years And lest the people should be at an uncertainty in criminal cases which were dangerous therefore by the 122. Act Ia. 6. Par. 14. it is appointed that no man shall take more profite then according to ten Pound for the hundred Pound or five Bolls of Victual which the annualrent being then at ten of the hundred and now at six doth allow according to that probation two Bolls for the hundred Merks whereas there was but only one Boll taken here for the annualrent for the hundred Merk nor was this Act abrogat by the Act 247. Par. 15. because though that be posterior yet it doth not expresly abrogat this Act nor ought it to have been abrogat for avoiding of uncertainty as said is And for the same reason the undertaking of hazard hinders the taking of advantagious Tacks to infer Usury as was decided September 1668. wherein Robert Lawder was pursued as an Usurer because he had taken a tack of two Buts of Land and a Dovecoat for four years which payed fifty Merks yearly communibus annis and that for satisfaction of the annuulrents of an hundred Merks which Tack did bear this clause that if the first year Robert were payed he should defalck so much of the annualrent proportionally notwithstanding of which clause he refused to compt It was alledged for the defender that the Tacks-man had run a hazard because he might have been disappointed of all duty quo casu he would have got no releif To which it was duplyed that the same hazard was in wodsets and yet the taking a wodset for more then the ordinary annualrent made the wodsetter incur the Crime of Usury Nor could this hazard defend because it was not great and there was scarce any hazard in it not could the danger be here objected seing after expiring of the years the receiver offered to compt with the lender and to allow him both principal sum and annualrents to which it was triplyed that the Act of Parliament discharging Usurary wodsets doth not discharge Tacks and there is a great difference as to Usury betwixt tacks and wodsets for wodsetters have the liberty to require their Money from the debitor so that they lose not the sum though they lose their rents but Tacksmen lose all if their tack duty be not payed and as to their offer of compting that being only competent after the first year it could not be objected thereafter and the danger was past before the offer The fourth degree of usury with us is to take budd or bribe for the loan of money or for continuing it when it is lent whereupon many debates do arise The cause why the debitor gives a gratuity to his Creditor being oft actus animi is hard to be proven But generally it is sustained that a proceeding Treatie must be proved or else it must be proved that the receiver is manifestus that is an ordinar Usurer for else to receive a gratuity is no crime And it were against reason that by lending money to my friend I should become uncapable of a donation from him V. The common Law also sustains it to be Usury if a man Wodset his Lands and in the Wodset provide that it shall not be lawful to Redeem betwixt and a definit time for in that case it presumes that the wodset granter adjects this because of some known advantage and this is to take more advantage for money then the Annualrent Molm. de Censu But this the Lords would not sustain to be Usury Nor did they find it an unlawful paction in the Action betwixt Sir Iohn Drummond and Achtertyr And in effect these pactions are allowed by Act 62. P. 1. K. C. 1. S. 1. By the Civil Law it was Usury to take Annualrent for Annualrent at least it was declared unlawful l. ult C. de usur And I conceive that to swell up Annualrents thus beyond what the Law allows would infer Usury with us for else the Law might be thus cheated But though by the Civil Law it was unlawful and Usury to accumulat Annualrents with the principal sums and to make both bear Annualrent which was called Anatocismus and is discharged l. 28. C. de usur yet with us such pactions are most lawful for since if the Annuals had been payed they had born Annuals why may they not be lent out to the debitor as well as to others VI. The probation of Usury is either by writ witnesses or Oath as to writ it may be doubted how the pursuer may recover it for instructing his Libel the writs being ordinarily in the Usurers own hand and nemo tenetur edere instrumenta contra se. And yet I find Lawyers very clear that hoc casu tenetur edere contra se Bartol doctores ad l. praetor § Is etiam ff de edendo Arelat de heretic notabil 21. and seing with us Usurers are obliedged to swear against the common Criminal rules because of the obscurity of the crime why should they not be oblieged to produce ther writs for the same reason and as to the former maxime that nemo tenetur edere c. It may be answered that it holds not in criminalibus for we see that in improbations the Pursuer will force the Defender upon an alledgeance of falshood to produce all his writs and why not in Usury Yet I know that it is ordinarily advised in such cases to raise an exhibition As to the probation by witnesses It is doubted if the Debitor who lent the money may be received as witnesse seing he is socius criminis it being unlawful to take as well as to give upon Usury but with us these are received as Hissleside in Somervel's case 18. Ian. 1667. But thereafter the Justices declared that they would not sustain the Debitor to be a witnesse 11. November 1667. His Majesties Advocat contra Wilson And that because by the 7. Act P. 16. K. I. 6. It is appointed that usury shall be proved by the Oath of the party receiver of the unlawful Annualrent and witnesses insert without receiving the Oath of the giver of the unlawful Annualrent for eviting perjury Nor will the Justices sustain as a reply that the giver of the unlawful Annualrent in this case had payed the
to swear Before any debate upon the indirect manner the Lords use to ordain the pursuer to give in his articles of improbation and to ordain the defender to give in his articles of approbation And albeit there be not publicatio testimoniorum in our Law in Civil Cases yet because improbations have a criminal effect and tend to take away the life of the defender therefore the Lords use in this case to ordain the depositions of the witnesses to be seen by both parties and both parties being fully heard to debate in praesentia the Lords do either improve or Assoylzie If the Lords improve they have by the foresaid acts of Parliament power to impose an arbitrary punishment suitable to the crime And therefore they do sometimes ordain the forget to be taken to the Crosse with a paper Hat if the cheat was but small or the person in great necessity And sometimes they only ordain the forger to be imprisoned and rebuke him without discovering the falshood as they did lately to a Gentleman who being otherwayes very discreet was by his poverty driven to counterfit the subscription of his friend to a bond of Suspension Sometimes likewise they refer the forgers to the Council who upon that reference use either to condemn the forger to perpetual imprisonment as they did Captain Barclay or else they use to send them to the Mercat Crosse with a paper hat as they did Tulloch a Nottar for forging a charter 4. Iuly 1638. but this mitigation is only allowed when the forger hath been induced to commit that crime by the perswasion of others or by his own simplicity and hath ingeniously confest VII The ordinary way of procedor taken by the Lords when they have improven the papers and found them to be false is to remit the forger to the Justices against whom an indictment being drawn up and the Assize sworn the Lords Decreet is read without repeating any further probation and the Assize must condemn thereupon else they will be pursued for errour And therfore the verdict eo casu bears finds the Pannel guilty in respect of the Decreet of the Lords of Session Upon this verdict the Justices are tyed expresly to condemn the defender to be hanged as Halyday for counterfeiting a Discharge 8. February 1597. Iames Tarbet for being art and part of counterfeiting a false Charter 16. February 1600. And if the falshood be atrocious they sometimes before the execution ordain the right hand to be cut off If the Lords remit not the case to the Justices when they find the Papers to be false they ordain the Papers improven to be cancelled in their own presence but if they remit the forgers to the Justices then the Papers are carried to the Justice court and when the sentence is pronounced there against the Pannel the papers are likewise cancelled at the command of the Justices VIII The second species of Falshood is that which is committed by witnesses in their depositions which may be many wayes commâ—tted as 1. By taking money to depon or not depon Si quis pecuniam ad dicendum vel non dicendum testimonium acceperit l. 20. ff h. t. 20. by concealing the truth or expressing more then the truth though they received no money l. 16 § ult hoc tit 3. By deponing things expresly contradictory but in this case the contradiction must be palpable and not consequential nam omnis interpretatio praeferendo est ut dicta testium reconcilientur Witnesses either are such as were sworn and if they swear falsly eo casu they are guilty of perjury vid. tit perjury or else they are such as are false witnesses without an oath as witnesses in papers and these are punishable tanquam falsarii Bart. ad l. si quis ff ad l. Corn. Clar. hoc tit num 11. and of these I design to treat only at least principally in this Title He who depones falsly in one point is repute false in all his deposition whether the points be coherent or not But he who depones falsly only in extrinsick circumstances is not to be equally punish'd as if he had depon'd falsly upon the substantials of what is interrogat and yet in both cases he is falsarius And thus the Lords ordained one of Barclays Servants to be sent to the Cross with a Paper Hat because he prevaricat only in his deposition about the carrying of a Letter though that was extrinsick to the debate and was mainly used to try the Witnesses honesty Oblivion or forgetfulness excuseth sometimes à paena ordinaria falsi if it be invincibly or strongly founded but not otherwise Witnesses deponing falsly and such as induced Witnesses were by our Law punished according to the disposition of the common Law Act 80. Parl. 6. I. 5. but thereafter by piercing their tongues and escheating of their moveables to the Kings use and are never to brook honour office or dignity and are to be further punish'd in their persons at the sight of the Lords according to the quality of their fault Q. M. Parl. 6. Cap. 48. By the Lords in this Act are meant the Lords of Session who may punish Witnesses ex incontinenti during the dependence of the Process before themselves wherein the Witnesses depone falsly but if either the falshood was committed by deponing in another Court or if the Lords be functi officio as to the Process wherein the falshood was committed eo casu the Lords cannot judge the falshood or punish the false Witnesses Sometimes the Lords ordain the Witnesses to be remitted to the Council thus the Lords ordain'd the Witnesses who had confest that they subscribed Witnesses to a Disposition granted by the Tutor of Towie to his Nephew to be remitted to the Council who banâ—sh'd them And sometimes they themselves ordain them to be banish'd or to have their tongues pierc'd or to be set upon the Cock-stool with a Paper Hat yet they cannot ordain them to die because the arbitrary power granted by this Act cannot in Law be extended ad infligendam paenam mortis as is fully cleared else-where and therefore the Lords use to remit the falsarie to the Justices if the Crime deserve death But it may be questioned if the Justices can inflict the pain of death in any case upon false Witnesses since that Crime is not declared capital by any Act But to this the answer is that they may and do inflâ—ct capital punishment upon the committers of this Crime in some cases And by the foresaid Act Ia. 5. it is declared punishable according to the disposition of the Common Law by which is meant the Civil Law de practica Witâ—esses have been hang'd for bearing false witness as Croy and for suborning others to bear false Witness as Cheyn March 15. 1605. And Grahame March 8. 1615. At which time also Dunlop and some others were hang'd for offering themselves to be false Witnesses albeit they did not actually depon because they were not received
to this seems to be that a party having made his Antagonist absolutely Judge of his own cause he has as it were submitted to him juramentum debet esse ultimum refugium and this seems to be the case decided per. l. 2. C. de rebus credit religionem contemptam juramenti satis deum habet ultorem sed majestatis crimen vel periculum corporis si per principis venerationem quodam calore fuerit perjeratum inferri non placet for in the immediatly preceeding Law it is said that causa jure jurando ex consensu utriusque partis delato decisa nec perjurii praetextu retractari potest so that adding both Laws together the sense is that when the cause is referred to any Parties Oath it being decided conform thereto that Decision can neither be retracted upon pretext of Perjury nor can the Perjurer be corporally punished And this seems a much more reasonable answer than those many given by the Doctors but yet I cannot assent to the conclusion it self nor is it at all conform to our Law nor perhaps to reason for interest and avarice are sufficient baits to Perjury though impunity be not thereto added and when the Party defers an Oath he intends thereby to submit finally to him to whom the famine is deferred but not so but that if thereafter the sweaâ—er shall be found Perjured he may be still challenged Nor perhaps would he have deferred the Oath if he had not concluded himself secure as to what should be deponed not only out of respect to Religion but likewise because of the hazard of Perjury and seing in this case there is mendacium juramento affirmatum I do not see how it should not be Perjury Is there any ground why at least His Majestie 's Advocat should not be allowed to pursue it for the reason which is urged for the speciality in it ceaseth in him And as there is no Decision in favours of Clarus his opinion in our Law so in Mr. Iames Row's and other cases where this might have been proponed this defence was never proponed yet in some cases the deponer in juramento delato craves that the Lords may declare that he shall not be liable for Perjury when any Oath is necessarily so deferred to him which the Lords in some cases use to grant as in facto antiquo And by so doing they show that Perjury is punishable regulariter even in him to whom an Oath is deferred but I believe that the Doctors have more justly concluded that where an Oath is deferred in Criminals though the Pannel needs not swear yet if he do swear he is not punishable as a perjured person though he swear falsly quia licet cuique suum redimere sanguinem Clar. num 12. And yet it may be debated that this holds not with us in Usury and other cases because there the Law obliedged him to give his Oath and Matheus doth think that it should in no case but rather that the Perjurer should there be punished with a double punishment both for concealing the Crime and also Perjuring himself And it may be alledged that this is rather punishable then ordinary Perjury because the Defender needed not swear and was in no hazard by not swearing and the less the temptation be the sin is alwayes the greater nor needed the Defender redeem his own Blood by swearing as is pretended or at least licet hoc liceat licere tam debet per modum licitum sed non perjurio VI. It may likewise be doubted in some cases whether the violation of an Oath doth infer Perjury as when a Judge gives his Oath that he shall administrat Justice impartially or an Advocat that he shall be honest in his imployment without discovering his Clients secret or betraying his business if that Judge taking Money as a bribe or that Advocat thereafter prevaricating may be upon these accompts pursued for Perjury And this was I remember controverted in the case of one of His Majesties Officers of State who was pursued upon the foresaid Act of Queen Mary for Perjury because he was alledged to have taken Money from the defenders in cases wherein they were pursued at His Majesties instance and that this could not infer Perjury was argued from this that our Law having made some particular Statutes as to Perjury it designed thereby that the Subjects of this Nation should not in this Crime be left to the common Law and seing it had only punished Perjury in the case of Witnesses Assizers and Bigamy it did clearly follow that Perjury deum tantum habet ultorem in all other cases 2. If Perjury were punishable in this case Tutors and Executors who find caution might be always punished for Perjury where they are pursuable for Mal-administration which were absurd and was never practized in any Nation 3. When such Oaths as these are given these words As ye shall answer to God are ordinarly adjected rather to impresse a fear of the Deity upon the swearer than to subject him by the Oath to the hazard of Perjury and the fear of Perjury is neither thought upon considered by the Administrator nor the swearer so that non de hoc agitur at that time which is one of the many things that is always looked to in punishing of Crimes 4. If consequential Perjury had been punishable as formal Perjury there needed no Act to have been made declaring that Bigamy should be repute and punished as Perjury seing it was such by consequence before that Act. For the better clearing of this case it will be fit to divide Perjury in Formal and Consequential Perjury and to conclude that formal Perjury which is in these cases declared Perjury by an expresse Act should be punishable as a Crime But that consequential Perjury as may be instanced in the cases above-written should not be punished as a Crime but as an Aggravation for seing in these the Perjurer did not formally design to commit Perjury is were not very rational to think that he should be punished by the formal punishment of that Crime which distinction I find likewise allowed by the Civilians for albeit formal Perjury was only punishable by Banishment and Infamy Yet if any man died by that Perjury as in false-witnessing in capital Crimes the Perjury was eo casu punishable by death and if it was mixt with Treason it was punishable as Treason Margaret Wood was in February 1631. pursued for having perjured her self as a false Witness in so far as she having been cited before the Privy Council and examined by them she had deponed many false things against the Laird of Pitcaple and Richard Mowat Against which pursuit it was alledged for her 1. That she could not be pursued as a false Witness because a Woman in our Law cannot be a Witness and consequently she cannot be a false Witness 2. She did not depon upon oath before the Council and consequently she cannot be guilty of Perjury since nemo
by the Lords of Secret Council to have the sole criminal Jurisdiction and did repledge servant to Sir Thomas Nâ—colson the Kings Advocat arraigned before the Magistrats of Edinburgh for a Slaughter and Assoilzied him upon production of a Remission And upon the 5. of September 1672. Gilbert Earle of Errol did repledge Iames Iohnstoun Violer arraigned before the Magistrats of Edinburgh as Sheriffs within themselves for stabbing of his Wife the day before Easter the Magistrats had taken his judicial confession and summonded the Assize there was no formal repledgiation because the Magistrats passed from him upon the Constables application and upon the 6. of that Moneth of September the Constables Deputs sentenced him to be hang'd and to have his right hand which gave the stroak cut off and affixed upon Lieth wind Port and ordained the Magistrats of Edinburgh to cause put the sentence to execution upon the 9. of that Moneth Likeas the Coach-man of a Noble-man having about the same time wounded a Child the Constable commanded the Towns Guards to apprehend the Delinquent which they accordingly did till he was freed by a Remission II. Out of this high Magistracy of Constable sayes Lambert an English Lawyer were drawn those inferiour Constables of hundreds which Office we borrowed from them and they are with us subservient to the Justices of Peace and are to be chosen by them two out of every Paroch and as many in Towns as may be proportional to the greatnesse thereof and they have power to apprehend all suspicious idle or guilty persons and may require the neighbours to assist them and if the guilty persons flee they may require the master of the house to make open doors all which with many other particulars are entrusted to them by the 38. Act. 1. Par. Ch. the 2. III. His Majesties Predecessors used of old to build Castles in the considerable Towns of the Kingdom and for preserving the Peace both in that Town and in the adjacent Countrey and the Governours of those Castles were called Constables though they were more properly Castellains or Chastellains as the English Lawyers observe these had the power of riding the Fairs and having had the Keys of the Tolbooth delivered to them they exercised a criminal jurisdiction during those Fairs but it was found that this jurisdiction did not extend to Fairs that were granted posterior to the Office of Constabulary nor to the customes thereof as was found the 18. of Iuly 1676. betwixt the Earl of Kinghorn and the Town of Forfar but these Offices depend absolutely upon prescription use or custome which either extinguisheth or limits them most variously but because those Constables use to extort customes at those Fairs it is therefore appointed by the 60. and 61. Acts 13. Parl. Ia. 2. that the Constable shall not exact any such customes except his Festment bear him thereto and that old use and custome shall not be sufficient Which Acts are ratified by the 33 Act 5. Parl. Ia. 3. But if the Infestment in the general bear cum feudis devoriis c. Possession by vertue of that general Right will be found sufficient though the particular Casualities be not exprest in the Infestment as was found in the former case betwixt the Earle of Kinghorn and the Town of Forfar This Officer was amongst the Athenians call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 TITLE V. The Jurisdiction competent to the High Chamberlain and Magistrats of Burghs Royal. THe Chamberlain was an office to whom belonged the judging of all Crimes committed within Burgh and he was in effect Justice-general over the Burrows and was to hold Chamberlain-Aus every year for that effect the form whereof is set down in Reg. Maj. in a Book intituled the Chamberlain-Air Iter Camerarii he was a Supream Judge nor could his Decreets be questioned by any Inferiour Judicatory Iter. Cam. cap. 35. and his sentences were to be put to execution by Bailiffs of Burghs ibid. cap. 37. he made the prices of all Victual within Burgh cap. 33. and of these who wrought in the Mint-house Statute Da. 2. cap. 38. He is called Camerarius à Camera id est testudine sive fornice quia custodit pecunias quae in Camer is praecipue reservantur This office belonged heretably to the Duke of Lennox but its priviledges are by his absence run in desuetude Magistrats of Burghs as such have no Jurisdiction but what is competent by their Charter of erection wherein ordinarily they have power of Pit and Gallows but sometimes they are Justices within themselves as Edinburgh who have right also to all escheats of their own Burgesses or other Criminals judged by them for crimes committed within their own Burgh Sometimes they are Sheriffs within themselves and ordinarily they are Justices of peace within their own Jurisdiction The King may erect a Burgh Royal within the bounds of another Jurisdiction as of a Regality but in that case though the Lord of Regality consent to the erection yet it will not prejudge the Bailie of Regality whose Right of Bailiery was constitute prior to the erection of the Casualities that were formerly due to him albeit it was alledged that the Lord of Regality might disolve and dismember that part from the Regality without the Bailies consent and so it not being in the Regality it could not be subject to the Bailiery the 27. of February 1666. Lord Colvil contra the Town of Culross TITLE VI. The Jurisdiction of His Majesties Privy Council in Criminals 1. In what consists the Iurisdiction of the Council their President and number 2. Their procedur in punishing Ryots 3. Whether a power to eject be a sufficient defence against a Ryot 4. The punishment of Riots 5. Precognitions fully considered 6. The Council name Assessors to the Iustices and sometimes review their Sentences 7. They grant Letters of Intercommuning and Commissions for Fire and Sword 8. They sometimes ordain Houses to be delivered under pain of Treason I. THe Affairs of this as of all other Nations are either such as concern the policy of the Kingdom in general or such as respect the distributing of Justice betwixt privat parties the policy or government of the Kingdom is regulated by His Majesties Privy Council in which the Chancelor is President if he be present but in his absence the President of the Council precedes This Office of Precedent of the Council is a distinct imployment and it gives him the precedency from all the Nobility The number of this Judicator is not definit depending upon His Majesties Commission but all the Officers of State are Members of it ratione officii it has its own Signet and its Letters past by a Bill subscribed by any one of the Council upon which warrand the Letters are in their several forms extended and subscribed by the Clerk of the Council and they bear also to be ex deliberatione Dominorum Secreti Consilii they must be execute at least upon six free dayes and a
and the power of giving of quarter is naturally inherent in all Souldiers as such and as the Council without expresse remission from the King upon submission might have secured their lives so might Souldiers by quarter for they have as much power in the field as the others at the Council Table 2. Lawyers are very clear that quarter should be kept though given to subjects who are Rebels Grotius lib. 3. Cap. 19. where after he hath fully treated that question de fide servanda concludes that sides data etiam persidis rebellibus subditis est servanda And this hath been observed in the civil Wars in Holland and France and by his Majesty and his Father at home during the late troubles 3. Quarâ—er is advantagious to the King and so should be kept for these who were taken might have killed his Majesties General or Officers and by giving quarter to his enemies he redeemed his Servants and if the only effect of quarter were to be reserved to a publick tryal none would accept quarter Notwithstanding of which reply the defence was repelled and the Pannels condemned and thereafter execute The second question was that which was debated in Haddo's case 16. March 1642. At which time that Loyal Gentleman Haddo being pursued for killing Mr. Iames Stalker Servitor to the Lord Frazer he alledged that the said Mr. Iames was killed in the open field in a conflict betwixt the Convenanters and Ante-Covenanters All which Acts of ostility were remitted by the pacification To which 〈◊〉 was replyed that the Pacification did only secure against acts of hostility which were done in furore belli but this was a privat murder for the said Mr. Iames having been taken a Prisoner Haddo did come up to him and asked whose servant he was and hearing that he was servant to the Lord Frazer he said your masters man is the person that I am seeking and thereupon ordered to kill him which was accordingly done by which it clearly appears that this was a privat murder done in cold blood and upon premeditat malice and Mr. Iames Stalker being a Prisoner any who killed him was liable for his murder ex jure militari and the pacification could no more defend the committer then if he had gone into a prison and killed a prisoner or if he had committed a Rapt upon a woman likeas Murderers are expresly excepted from the pacification 2. Haddo was no general person and so could not give order for his execution and so the killing of the defunct was not warrantable by the Law of Armes To which it was duplyed that the pacification did secure against all deeds whatsoever done upon the field by persons engaged in either party without debating whether the deed was lawfully or unlawfully done and the occasion and not the manner of killing is to be considered And as to the manner it is answered that Mr. Iames had never got any quarter and so was not a Prisoner in War and therefore might have been killed by any engaged in the quarrel whether general person or other But the truth is the said Haddo did command that party which was equivalent to his being a general person and albeit the pacification did expresly except murders yet that behoved only to be interpret of such murders as had no contingency with the troubles nor were occasioned by them this debate was not decided but was remitted to the Parliament and that worthy Gentle-man executed for rising in arms against the Estates of Parliament III. I find that there was a Commission granted by the Parliament in Anno 1644. to two Bailies of Edinburgh to sit and hold justice Courts upon such Souldiers as were runaways and that upon this Commission Iames French was condemned by them for running away from his Collours contrary to the Act of Parliament 1644. and was hanged accordingly From which these observations may be made 1. That the Justices are not Judges competent to crimes that are meerly Military 2. That we have no standing Law for executing runaways beside the Martial Law nor was there any Law founded upon this inditement except the Act of Parliament 1644. which is now abrogat 3. It is observeable that one Mr. Alexander Henderson as Procurator Fiscal and not His Majesties Advocat was here pursuer From all which it seems somewhat strange that this Process should have been insert in the Adjournal Books IV. But albeit deserters were here punisht with death yet regulariter milites gregarij or listed Souldiers are only punishable in time of Peace with degredation and in time of War with death because the hazard is then greater l. 5. § 1. ff de remilit and by that Law they may be killed by any man lib. 2. Cod. quando liciat unic c. But this arbitrary killing is not now in use as Voet de jur militat very well observes if superiour Officers leave their charges they commit Treason l. 2. ff ad leg jul majest vid. tit Treason V. Constantine having extinguisht the Office of praefectus Praetorio who was the Supream Judge in all Military cases The Magistri militum succeeded and were sole Judges of all crimes committed by Souldiers both in Civil and in Military cases and if Souldiers had offended the Civil Magistrat might have secured but he was obledged to remit them cum elogio to their own Officers l. 9. ff de custod reor vid. tit C. de remilit TITLE XVII Advocations of Criminal Causes 1. Advocations defined 2. No Advocation from the Iustices 3. How Advocations are raised from inferiour Courts and the forms thereto relating 4. The ordinary Reasons of Advocations examined 5. Whether the Iustices are proper Iudges to their own competency I. ADvocation is the away calling of an intended cause or pursuit from an inferiour incompetent judicatory to a higher and more competent and is the same thing with us that recusatio judicis was with the Romans and is by the Doctors call'd advocatio or evocatio which is by them defined to be litis pendentis coram inferiore ad superiorem absque provocatione facta translatio Gail lib. 1. obs 41 num 7. and is founded upon cap. ut nostrum de appell l. jud solvitur ff de jud II. Their is no Advocation raised of pursuits intented before the Justices but if ther be any design of stopping a pursuit depending before them there useth to be a Petition given in to the Lords of Secret Council who if they find the desire of the Petition just will ordain the Justices to stop all further procedor or will remit the inquiry to any other Court as they did in a pursuit intented at the instance of the Earl of Caithness against some Vassals of the Earl of Sutherland which they stopt as to the Earl himself and ordained his Vassals to be pursued before his own Regality Court sometimes also they ordain Assessors to be Justices so that there is never a cause formally Advocat from before the Justices